Memo Shows Bush Administration Says to Hell With Fourth Amendment Rights

News last week of former White House lawyer John Yoo's recently disclosed 2003 memo positing, among other things, that the president's authority as commander in chief allows him to override federal laws prohibiting "assault, maiming and other crimes" against suspects in the "war on terror" was followed by a second revelation: an alarming footnote on page 8 referring to another secret memo, written shortly after 9/11, and, in the name of national security, dispensing with the Fourth Amendment.

In the age of the "war on terror," according to the footnote, the Department of Justice "recently concluded that the Fourth Amendment had no application to domestic military operations." (Emphasis in the original.)

The Fourth Amendment, of course, lays out "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Critics of the Bush administration's warrantless wiretapping program -- which was started in the same weeks the memo was written -- have staked their claims in part on its violation of this right. Proof that the program originated at the same time that the White House officially jettisoned the Fourth Amendment in the name of national security is a damning -- if not surprising -- revelation.

There's been a good deal of debate already over whether or not this 2001 memo actually laid the groundwork for the Bush administration's so-called "Terrorist Surveillance Program," which was exposed in December 2005. The White House has claimed that it had nothing to do with it, with press spokesman Tony Fratto telling reporters that the program "relied on a separate set of legal memoranda." But as the legal underpinnings of the Bush administration's vast power grab are unraveled, the memos offer a window into the radical mindset and ruthless political culture operating in the White House. As tedious and stultifying as the ongoing legislative debate over FISA has been, the Yoo memo is a sobering reminder of the lawlessness at the root of the government's spying program -- and why we should still be paying attention.

Speaking of paying attention: In case there was any doubt, no, Congress and the White House have not yet agreed upon an updated version of the FISA bill. After an endless series of discussions, false starts, shameless, 24-inspired GOP propaganda ads, and one ridiculous countdown clock -- on March 14, to Bush's dismay, the House passed a version of the FISA bill that omitted immunity for telecoms. This was the day after Bush had appeared on the White House lawn and tried to shame House members into passing the Senate version of the FISA bill, which allows retroactive immunity for telecoms. "Companies that may have helped us save lives should be thanked for their patriotic service," Bush said, "not subjected to billion-dollar lawsuits that will make them less willing to help in the future."

A few weeks later, on April 1, Politico.com reported that House Majority Leader Steny Hoyer had announced that the White House "is now in a position where they want to talk about a possible compromise" on the surveillance legislation. According to Hoyer, Congress and the Bush administration were now working in "a different environment than we were in two weeks ago." No word on what that means, but hints that the White House is willing to negotiate remain dubious. "We've seen this before," wrote True Majority organizer Ilya Sheyman in an action alert sent out on April 2. "Every month or so, the White House floats a new trial-balloon of a possible compromise bill, which inevitably includes immunity for phone companies." Indeed, rather than negotiating the legislation, the Bush administration and his followers in Congress have focused on repackaging it from month to month, with an ongoing PR campaign in between. In public, director of national intelligence Mike McConnell has indulged in Bush's fear-mongering fiction that Congress is simply pandering to their legions of money-grubbing trial lawyer supporters. Systematically distorting the debate, he has claimed, for example, that some in the Senate simply believe "we shouldn't have an intelligence community" and that others "say the president of the United States violated the process, spied on Americans, should be impeached and should go to jail." (Would that our congressman be so bold!)

In reality, the Bush administration is less concerned about protecting the telecoms than it is about insulating itself from accountability in operating as if it is above the law. As Sheyman points out, "Passing retroactive immunity would put an end once and for all to lawsuits which have the potential to expose the full extent of Bush's illegal wiretapping program … On this question, there can be no doubt, immunity for phone companies is the same as immunity for George Bush and Dick Cheney."

Coincidentally, the same day that news broke of the Bush administration's supposed newfound spirit of "compromise," on April 1 on Democracy Now!, Amy Goodman interviewed New York Times journalist Eric Lichtblau, one of the two reporters to break the warrantless wiretapping story in December 2005. In his first national broadcast interview following the publication of his book Bush's Law: The Remaking of American Justice, Lichtblau described the atmosphere surrounding revelations of Bush's spying program.

"FBI agents stumbled onto this program accidentally within about twelve hours of its inception, and there was a firestorm of anxiety: 'What the hell is going on here?' was the reaction literally of one official. This went up the fire poll to senior officials who said, 'What is going on here? The NSA is not supposed to be in the business of spying on Americans.'"

He also described the intense pressure exerted by the White House on the Times not to publish the story of the government spying program. Ultimately, he said, "the message … was that if there is another attack because you run the story, there will be blood on the New York Times's hands. That was the message that we all took away from this. If there is another calamity because of -- if there's another calamity after the New York Times runs this story, we will be responsible."

Three and a half years later, there have been no terrorist attacks on American soil, a fact the administration would credit to illegal programs like warrantless wiretapping. The Bush administration has even seen fit to rewrite history to fit this narrative; in late March, at a speaking engagement at New York's Commonwealth Club, Attorney General Michael Mukasey came close to tears as he claimed that the terrorist attacks of Sept. 11 could have been prevented if the government had been in a position to eavesdrop without a warrant. "We've got 3,000 people who went to work that day and didn't come home to show for that," he said, struggling to regain his composure. Glenn Greenwald, whose FISA coverage has been unmatched, has plenty to say about Mukasey's false claims. When it comes to pushing through the FISA legislation, it seems nothing is sacred to the Bush administration.

As we await the next "compromise" (or capitulation) on FISA, it's a good time to step away from the endless chatter and take the long view. Revelations like the 2003 memo provide a sobering reminder that, like the White House's torture doctrine, the Bush administration's eavesdropping program was designed in a constitutional vacuum. As reporters for the Associated Press articulated, simply, "For at least 16 months after the Sept. 11 terror attacks in 2001, the Bush administration believed that the Constitution's protection against unreasonable searches and seizures on U.S. soil didn't apply to its efforts to protect against terrorism." As with so many other post-9/11 abuses of power, rather than pushing back, Congress has willingly bent to the frame the Bush administration has imposed when it comes to its eavesdropping program, one that leaves out the basic fact that it was illegal from the start. The result has been dire. As Greenwald wrote last August, "That government officials like McConnell feel so comfortable openly admitting that the government broke the law, obtaining amendments to legalize that behavior after the fact, and then demanding immunity for the lawbreakers, demonstrates how severely the rule of law has been eroded over the last six years."